House Bill 257

AN ACT TO CREATE THE OFFENSE OF CURBSTONING, TO PROVIDE
PENALTIES FOR VIOLATIONS; TO AMEND SECTION 63-17-73, MISSISSIPPI CODE OF 1972,
IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF MISSISSIPPI:

SECTION
1. (1) Any person who sells more than five (5)
motor vehicles in a twelve-month period without a valid license as required by
the Mississippi Motor Vehicle Commission Law shall be guilty of curbstoning
and, upon conviction, shall be punished by a fine of One Hundred Dollars
($100.00) per occurrence for a first offense.
For a second offense such person shall be punished by a fine of Five
Hundred Dollars ($500.00) per occurrence.
For a third or subsequent offense such person shall be punished by a
fine of One Thousand Dollars ($1,000.00) per occurrence and by imprisonment of
not more than six (6) months. Any
landowner or tenant who allows this offense on his property shall be subject to
the same fines as provided in this subsection.

(2)
The tax assessor of each county shall be charged with the responsibility
of determining and recording from whom purchased on each title application that
he fills out and processes or completes.
Once an unlicensed dealer sells his sixth vehicle in a twelve-month
period, then the county tax assessor shall report the alleged violator to the
Motor Vehicle Title Bureau for assignment for investigation. The Motor Vehicle Title Bureau shall
instigate the necessary legal action within forty-five (45) days of the
reporting date by the tax assessor. The
Motor Vehicle Title Bureau shall prescribe the method of reporting by the tax
assessor. The bureau shall maintain an
adequate data base of these violators.

(a) For any person, firm, association,
corporation or trust to engage in business as, or serve in the capacity of, or
act as a motor vehicle dealer, motor vehicle salesman, manufacturer,
distributor, wholesaler, factory branch or division, distributor branch or
division, wholesaler branch or division, factory representative or distributor
representative, as such, in this state without first obtaining a license
therefor as provided in the Mississippi Motor Vehicle Commission Law,
regardless of whether or not the person, firm, association, corporation or
trust maintains or has a place or places of business in this state. Any person, firm, association, corporation
or trust engaging, acting or serving in more than one (1) of the capacities or
having more than one (1) place where the business is carried on or conducted
shall be required to obtain and hold a current license for each capacity and
place of business.

(b) For a motor vehicle dealer or a motor
vehicle salesman:

1. To require a purchaser of a new motor
vehicle, as a condition of sale and delivery thereof, to also purchase special
features, appliances, equipment, parts or accessories not desired or requested
by the purchaser. However, this
prohibition shall not apply as to special features, appliances, equipment,
parts or accessories which are already installed on the car when received by
the dealer.

2. To represent and sell as a new motor vehicle
any motor vehicle which has been used and operated for demonstration purposes
or which is otherwise a used motor vehicle.

3. To resort to or use any false or misleading
advertisement in connection with his business as a motor vehicle dealer or
motor vehicle salesman.

(c) For a manufacturer, a distributor, a
wholesaler, a distributor branch or division, a factory branch or division, or
a wholesaler branch or division, or officer, agent or other representative
thereof, to coerce, or attempt to coerce, any motor vehicle dealer:

1. To order or accept delivery of any motor
vehicle or vehicles, appliances, equipment, parts or accessories therefor, or
any other commodity or commodities which shall not have been voluntarily
ordered by the motor vehicle dealer.

2. To order or accept delivery of any motor
vehicle with special features, appliances, accessories or equipment not
included in the list price of the motor vehicles as publicly advertised by the
manufacturer thereof.

3. To order for any person any parts, accessories,
equipment, machinery, tools, appliances or any commodity whatsoever.

4. To contribute or pay money or anything of
value into any cooperative or other advertising program or fund.

(d) For a manufacturer, a distributor, a
wholesaler, a distributor branch or division, a factory branch or division, or
a wholesaler branch or division, or officer, agent or other representative
thereof:

1. To refuse to deliver in reasonable
quantities and within a reasonable time after receipt of dealer's order to any
duly licensed motor vehicle dealer having a franchise or contractual
arrangement for the retail sale of new motor vehicles sold or distributed by
such manufacturer, distributor, wholesaler, distributor branch or division,
factory branch or division or wholesale branch or division, any motor vehicles
as are covered by such franchise or contract specifically publicly advertised
by the manufacturer, distributor, wholesaler, distributor branch or division,
factory branch or division or wholesale branch or division, to be available for
immediate delivery. However, the
failure to deliver any motor vehicle shall not be considered a violation of
this subsection if the failure be due to acts of God, work stoppages or delays
due to strikes or labor difficulties, freight embargoes or other causes over
which the manufacturer, distributor or wholesaler, or any agent thereof, shall
have no control.

2. To coerce, or attempt to coerce any motor
vehicle dealer to enter into any agreement, with the manufacturer, distributor,
wholesaler, distributor branch or division, factory branch or division, or
wholesaler branch or division, or officer, agent or other representative
thereof, or to do any other act prejudicial to the dealer by threatening to
cancel any franchise or any contractual agreement existing between the
manufacturer, distributor, wholesaler, distributor branch or division, factory
branch or division, or wholesaler branch or division, and the dealer. However, good faith notice to any motor
vehicle dealer of the dealer's violation of any terms or provisions of the
franchise or contractual agreement shall not constitute a violation of this
subsection.

3. To terminate or cancel the franchise or
selling agreement of any dealer without due cause. The nonrenewal of a franchise or selling agreement, without due
cause, shall constitute an unfair termination or cancellation, regardless of
the terms or provisions of such franchise or selling agreement. "Due cause" shall be defined as a
breach by the dealer of a material provision of the franchise agreement which
breach has not been cured within a reasonable time after the dealer has been
given written notice of the breach. The
burden of proving that due cause exists shall be upon the party attempting to
terminate, cancel or not renew the franchise or selling agreement. The manufacturer, distributor, wholesaler,
distributor branch or division, factory branch or division, or wholesaler
branch or division, or officer, agent or other representative thereof shall
notify a motor vehicle dealer in writing, and forward a copy of the notice to
the commission, of the termination or cancellation of the franchise or selling
agreement of the dealer at least sixty (60) days before the effective date
thereof, stating the specific grounds for such termination or
cancellation. The manufacturer,
distributor, wholesaler, distributor branch or division, factory branch or
division, or wholesaler branch or division, or officer, agent or other
representative thereof shall notify a motor vehicle dealer in writing, and
forward a copy of the notice to the commission, at least sixty (60) days before
the contractual term of his franchise or selling agreement expires that the
franchise or selling agreement will not be renewed, stating the specific
grounds for the nonrenewal, in those cases where there is no intention to renew
the franchise or selling agreement. In
no event shall the contractual term of any franchise or selling agreement
expire, without the written consent of the motor vehicle dealer involved, prior
to the expiration of at least sixty (60) days following such written
notice. Any motor vehicle dealer who
receives written notice that his franchise or selling agreement is being
terminated or cancelled or who receives written notice that his franchise or
selling agreement will not be renewed, may, within the sixty-day notice period,
file with the commission a verified complaint for its determination as to
whether the termination or cancellation or nonrenewal is unfair within the
purview of the Mississippi Motor Vehicle Commission Law, and the franchise or
selling agreement shall continue in effect until final determination of the
issues raised in the complaint notwithstanding anything to the contrary
contained in the law or in the franchise or selling agreement.

4. To resort to or use any false or misleading
advertisement in connection with his or its business as such manufacturer,
distributor, wholesaler, distributor branch or division, factory branch or
division, or wholesaler branch or division, or officer, agent or other
representative thereof.

5. To offer to sell or to sell any new motor
vehicle to any motor vehicle dealer at a lower actual price therefor than the
actual price charged to any other motor vehicle dealer for the same model
vehicle similarly equipped or to utilize any device, including, but not limited
to, sales promotion plans or programs which result in such lesser actual
price. The provisions of this
subsection shall not apply so long as a manufacturer, distributor or
wholesaler, or any agent thereof, offers to sell or sells new motor vehicles to
all motor vehicle dealers at the same price.
This subsection shall not be construed to prevent the offering of volume
discounts if such discounts are equally available to all franchised dealers in
this state.

The provisions of this subsection shall not
apply to sales to a motor vehicle dealer of any motor vehicle ultimately sold,
donated or used by said dealer in a driver education program, or to sales to a
motor vehicle dealer for resale to any unit of government, federal, state or
local.

6. To offer to sell or to sell any new motor
vehicle to any person, except a wholesaler or distributor, at a lower actual
price therefor than the actual price offered and charged to a motor vehicle
dealer for the same model vehicle similarly equipped or to utilize any device
which results in such lesser actual price.

7. To offer to sell or to sell parts and/or
accessories to any new motor vehicle dealer for use in his own business for the
purpose of repairing or replacing the same or a comparable part or accessory,
at a lower actual price therefor than the actual price charged to any other new
motor vehicle dealer for similar parts and/or accessories for use in his own business. However, it is recognized that certain motor
vehicle dealers operate and serve as wholesalers of parts and accessories to
retail outlets, and nothing herein contained shall be construed to prevent a
manufacturer, distributor or wholesaler, or any agent thereof, from selling to
a motor vehicle dealer who operates and serves as a wholesaler of parts and
accessories, the parts and accessories as may be ordered by such motor vehicle
dealer for resale to retail outlets, at a lower actual price than the actual
price charged a motor vehicle dealer who does not operate or serve as a
wholesaler of parts and accessories.

8. To prevent or attempt to prevent by contract
or otherwise any motor vehicle dealer from changing the capital structure of
his dealership or the means by or through which he finances the operation of
his dealership, provided the dealer at all times meets any capital standards
agreed to between the dealership and the manufacturer, distributor or
wholesaler, provided such standards are deemed reasonable by the commission.

9. To prevent or attempt to prevent by contract
or otherwise any motor vehicle dealer or any officer, partner or stockholder of
any motor vehicle dealer from selling or transferring any part of the interest
of any of them to any other person or persons or party or parties. However, no dealer, officer, partner or
stockholder shall have the right to sell, transfer or assign the franchise or
any right thereunder without the consent of the manufacturer, distributor or wholesaler
which consent shall not be unreasonably withheld.

10. To condition unreasonably the renewal or
extension of a franchise on a motor vehicle dealer's substantial renovation of
the dealer's place of business or on the construction, purchase, acquisition or
rental of a new place of business by the motor vehicle dealer. The manufacturer shall notify the motor
vehicle dealer in writing of its intent to impose such a condition within a
reasonable time prior to the effective date of the proposed renewal or
extension, but in no case less than one hundred eighty (180) days prior to the
renewal or extension, and the manufacturer shall demonstrate to the commission
the need for the demand in view of the need to service the public and the
economic conditions existing in the motor vehicle industry at the time the
action would be required of the motor vehicle dealer. As part of any such condition the manufacturer shall offer the
motor vehicle dealer a reasonable initial supply and model mix of motor
vehicles to meet the sales levels necessary to support the increased overhead
incurred by the motor vehicle dealer by reason of the renovation, construction,
purchase or rental of a new place of business.

11. To require, coerce or attempt to coerce a
motor vehicle dealer to refrain from participation in the management of,
investment in or the acquisition of any other line of motor vehicles or related
products, as long as the motor vehicle dealer maintains a reasonable line of
credit for each dealership and the motor vehicle dealer remains in substantial
compliance with reasonable facilities' requirements of the manufacturer or
distributor. The reasonable facilities'
requirements may not include any requirement that a motor vehicle dealer
establish or maintain exclusive facilities, personnel or display space when the
requirements are unreasonable considering current economic conditions and not
otherwise justified by reasonable business considerations. The burden of proving by a preponderance of
the evidence that the current economic conditions and reasonable business
considerations do not justify exclusive facilities is on the dealer.

12. To fail or refuse to sell or offer to sell
to all motor vehicle dealers in a line or make, every motor vehicle sold or
offered for sale under the franchise agreement to any motor vehicle dealer of
the same line or make; or to unreasonably require a motor vehicle dealer to pay
an extra fee, purchase unreasonable advertising displays or any other
materials, or to unreasonably require the dealer-operator to remodel, renovate
or recondition its existing facilities as a prerequisite to receiving a certain
model or series of vehicles. However,
the failure to deliver any such motor vehicle shall not be considered a
violation of this section if the failure is not arbitrary and is due to a lack
of manufacturing capacity or to a strike or labor difficulty, a shortage of
materials, a freight embargo or other cause of which the manufacturer or
distributor has no control. This
provision shall not apply to manufacturers of recreational vehicles.

13. To attempt to coerce, or coerce, a motor
vehicle dealer to adhere to performance standards that are not applied
uniformly to other similarly situated motor vehicle dealers. Any performance standards shall be fair,
reasonable, equitable and based upon accurate information. If dealership performance standards are
based on a survey, the manufacturer or distributor shall establish the
objectivity of the survey process and provide this information to any motor
vehicle dealer of the same line or make covered by the survey request. Upon request of the dealer, a manufacturer
or distributor shall disclose in writing to the dealer a description of how a
performance standard or program is designed and all relevant information
pertaining to that dealer used in the application of the performance standard
or program to that dealer.

14. To increase prices of new motor vehicles
which the new motor vehicle dealer had ordered for the ultimate purchasers prior
to the dealer's receipt of written official price increase notification. A sales contract signed by the ultimate
purchaser that includes model and firm price shall constitute evidence of each
such order provided that the vehicle is in fact delivered to that purchaser.

(2)
Concerning any sale of a motor vehicle or vehicles to the State of
Mississippi, or to the several counties or municipalities thereof, or to any
other political subdivision thereof, no manufacturer, distributor or wholesaler
shall offer any discounts, refunds, or any other similar type inducements to
any dealer without making the same offer or offers to all other of its dealers
within the state. If the inducements
above mentioned are made, the manufacturer, distributor or wholesaler shall
give simultaneous notice thereof to all of its dealers within the state.

(3)
It is unlawful to be a broker.
For the purpose of this subsection, "broker" means a person
who, for a fee, commission or other valuable consideration, arranges or offers to
arrange a transaction involving the sale, for purposes other than resale, of a
new motor vehicle, and who is not:

(a) A new motor vehicle dealer or agent or
employee of such a dealer; or

(b) A distributor or an agent or employee of
such a distributor.

However, an individual shall not be deemed
to be a broker if he or she is the owner of the new or used motor vehicle which
is the object of the brokering transaction.

(4)
The offense of curbstoning shall be prosecuted as provided in Section 1
of this act.

SECTION
3. This act shall take effect and
be in force from and after July 1, 2007.